Conviction in the district court of Kaufman county of seduction; punishment fixed at two years in the penitentiary.
This appeal was dismissed at the former day of this term because of a defective recognizance. A sufficient bond having been executed, the appeal will be re-instated and the case considered on its merits.
This is the second appeal. See 96 Tex.Crim. Rep.. The facts are substantially the same except that the witness Palmer who testified on the former trial, did not appear. In our opinion the facts are sufficient to support the verdict.
We know of no decision in this State holding it erroneous for the court to permit jurors who have been selected, but the panel be not complete before the adjournment of court for the day, and such jurors have not been sworn, to permit them, under proper instructions from the court, to separate and go to their homes. Our law forbidding separation of the jury in an ordinary felony case less than capital, has no application until the jury have been selected and sworn. Coffey v. State, 82 Texas Crim. Crim. Rep. 57. *Page 301
Appellant's bill of exceptions No. 2 is to the refusal of a special charge concerning an argument alleged to have been made by the State's Attorney. The court qualifies the bill by stating that the argument referred to was in answer to argument made by appellant's attorney.
Appellant made an application for continuance. One of the witnesses named therein appeared and testified at the trial. Witness Palmer was said to be out of the State. There is no showing in the application as to whether the witness had permanently moved from the State or whether he expected to return, and no predicate laid that would justify the reproduction of said witness' testimony as given on a former trial. Our statutes provide that the defendant may take the deposition of a non-resident witness, and we find nothing in the record showing any attempt to comply with said statute.
Bill of exceptions No. 3 complains of the refusal of the court to permit appellant to renew an application for continuance because of the absence of the former court stenographer who had taken down the testimony at the former trial, — appellant stating that he desired the presence of said court stenographer for the purpose of reproducing the testimony of the witness Palmer. No sufficient predicate having been laid for the reproduction of the testimony of Palmer as formerly given, it would not be error to refuse to grant the continuance of the absence of the stenographer who took his testimony at said former trial. What we have just said applies to bills of exception Nos. 4 and 5 also.
Bills of exceptions No. 6 is unintelligible and presents nothing that the court can consider. Bills Nos. 7 and 8 present objections to cross-examination by State's counsel of two witnesses for the defense. In one instance the witness answered the question in the negative and in the other no answer appears. As answered and also as qualified by the trial court, neither presents any error.
We fail to observe how it could reflect upon the prosecutrix, to ask her whether there were any houses close to where the car was stopped, on an occasion when she in company with another young man together with one Jim Palmer and a young woman, were out in a car, the proof further showing that Palmer and his companion got out of the car and the prosecutrix and her companion remained in the car, and there being no suggestion of improper conduct on the part of the prosecutrix and the young man with her.
Appellant having drawn out of prosecutrix on her original cross-examination that she had suffered from pellagra, we see no objection to permitting the State to question her as to who treated her for it and when she was treated. The matter is complained of in bill of exceptions No. 10.
Bill of exceptions No. 11, as qualified by the court presents no error. It presents appellant's objection to the State's question to prosecutrix *Page 302 as to what condition she was in at the time appellant married his present wife. From the explanation made by the court it appears that this was given in redirect and that upon cross-examination prosecutrix had testified in response to a question by the defense that she did not know the woman who appellant married but did know that he married in September and up to that time she had not filed any complaint against him but was trying to.
For a bill of exceptions to complain that the county attorney asked prosecutrix, "What did he say about whether or not you were going to be his wife?" and that appellant objected to said question because it was leading, is wholly insufficient in the absence of a setting out of the surroundings and antecedents of such question.
Bill No. 13 complains of the fact that when prosecutrix came into the court room she brought with her the child claimed by her to be the result of the seduction by appellant. The bill shows no error. Upon objection by defense counsel the child was removed from the court room, and there is no showing that any illegal comparison was instituted between it and appellant, or any wrongful use made of the fact that the child came into the court room with its mother.
The matter set out in bill of exceptions No. 14 showing that appellant was not allowed to say that he had been informed before he married his present wife that prosecutrix was not pregnant. The matter is purely. Bill No. 15, shows an objection was made after the question was answered. As we view it, the question and answer both were proper. Bill No. 16, shows that appellant attempted to state that other parties had told him that they had had intercourse with prosecutrix prior to the time he had same. The testimony was heresay and properly rejected. A bill complaining of the fact that prosecutrix was permitted to state that prior to the time appellant had intercourse with her, no other man had ever sustained that relation, presents no error.
There are several bills complaining of argument such as that, "The defendant not leading his baby by the hand through life is not fit to enjoy the freedom of citizenship," and also of the statement by the county attorney that "when prosecutrix walks out of this court room she goes out with a nameless baby by her side," and of the statement by said prosecutor that, "She must go through life sneered at and jeered at with no man to ever love and care for her; no man to lead her down the church aisle in marriage, but she must bear her burden and her nameless child by her side," which seem but reasonable and fair deductions from the facts in the case and present no meritorious objection.
The complaint at the argument of the private prosecuting attorney for his statement about witness Arthur Alexander may have some basis, but we would not reverse a case when the lowest penalty was given for such argument unless the evidence was insufficient, *Page 303 or the attack upon the witness of a more vicious character. Alexander had shown by his testimony that he was an occupant of a rooming house in Dallas at which he claimed to have seen appellant with prosecutrix. From the bill of exceptions it is evident that the defense vigorously assailed the prosecution for its failure to impeach or reflect upon said witness, Alexander. What language was used by the appellant's attorney does not appear but replying to this argument the State's counsel said that they did not have to impeach a whore-monger and a pimp. The attention of the court being called to the matter he promptly instructed the jury not to consider the statement or the language used. We see no reason to believe that the jury did not follow the instruction of the court or that the matter was of such serious error as to call for a reversal.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING